Stoney 2 (or 4) largely follows the original Stoney opinion

The long strange journey of the Stoney appeal took another step on August 29, 2018 when the Court of Appeals issued its remanded opinion. Told by the Supreme Court to review the case on a de novo standard of review, and then told by the Supreme Court to review evidentiary and procedural issues on an abuse of discretion standard, this fourth opinion in Stoney (the second from the Court of Appeals) mostly scrubs the July 2016 opinion of reference to an abuse of discretion standard and simply finds that the family court largely erred. My analysis of the July 2016 Court of Appeals opinion remains accurate.

Other than the changed standard of review (which was expected because the Supreme Court demanded it) there are three interesting changes from the July 2016 Court of Appeals opinion.

First, the Court of Appeals granted Wife a divorce on the ground of Husband’s adultery rather than remanding the ground for divorce to the family court.

Second it explained that one reason the family court erred in not reopening the case based upon Wife’s after discovered evidence is that the party (Husband) representing at trial that such evidence did not exist was an attorney:

It is difficult to determine how the family court reached its conclusion that Wife could have discovered the documents prior to trial because Husband, an attorney, testified that certain of these documents did not exist. See e.g., Chewning v. Ford Motor Co., 354 S.C. 72, 82, 579 S.E.2d 605, 610–11 (2003) (“Contrary to perjury by a witness or a party’s failure to disclose requested materials, conduct which constitutes intrinsic fraud, where an attorney—an officer of the court—suborns perjury or intentionally conceals documents, he or she effectively precludes the opposing party from having his day in court.”).

Finally the Court of Appeals explained why it was remanding the matter back for a complete new trial (something I do not recall the Court of Appeals ever doing in a family court appeal):

When an order from the family court fails to make specific findings of fact in support of the court’s decision, the appellate court may remand the matter to the family court but when the record is sufficient, the court may make its own findings of fact in accordance with the preponderance of the evidence.

Unfortunately, the record here simply does not provide the information necessary for this court to make its own findings as to Husband and Wife’s actual marital assets and debts, Husband’s true income, the BHBI income not properly distributed to Wife and Child (with respect to both marital income and in accordance with their percentage ownership interests), the income Husband diverted to fund his ongoing business ventures, any legitimate debts that may be owed Brother, and the extent to which Brother may or may not have an interest in certain marital properties. Because of the conduct of the trial, Wife did not have a full and fair opportunity to develop the record and present the necessary evidence on these issues. Thus, we are unable to simply correct any error found in our de novo review. Instead, we must reverse and remand for the family court to proceed in accordance with this opinion.

Citation omitted.

No doubt a Petition for a Writ of Certiorari from Husband (after the mandatory Petition for Rehearing) awaits.

With Wife achieving an overwhelming victory in the initial July 2016 Court of Appeals opinion (albeit, a victory that necessitated a complete new trial), and with the Supreme Court demanding the application of a less deferential standard of review by the Court of Appeals of the family court order, there was little way for Wife to win bigger (or do worse) in round two.  The Supreme Court clearly used the Stoney case as a method of forcing the Court of Appeals to stop applying an “abuse of discretion” standard in reviewing family court decisions regarding substantive issues.  However all it really did is delay Wife’s remanded trial by twenty-five months.

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